Under the Hours of Service Act of March 4, 1907, c. 2939, 34 Stat. 1415, when several employees are kept on duty beyond the specified time of sixteen hours, a separate penalty is incurred for the detention of each employee although by reason of the same delay of a train.

Each overworked railroad employee presents towards the public a distinct source of danger.

The wrongful act under the statute is not the delay of the train, but the retention of the employee, and the principle that, under one act having several consequences which the law seeks to prevent, there is but one liability attached thereto does not apply.

An employee who is waiting for the train to move and liable to be called and who is not permitted to go away is on duty under the Hours of Service Act.

The penalty under the Hours of Service Act, not being in the nature of compensation to the employee but punitive and measured by the harm done, is to be determined by the judge, and not by the jury.

The facts, which. involve the construction of the Hours of Service of Railway Employes Act, are stated in the opinion.

This case brings up two suits that were consolidated and tried together, both being suits for penalties under the Hours of Service Act of March 4, 1907, c. 2939, 34 Stat. 1415, for keeping employees on duty for more than sixteen consecutive hours. The main question is whether, when several persons thus are kept beyond the proper time by reason of the same delay of a train, a separate penalty is incurred for each, or only one for all. The circuit court of appeals decided for the government without discussion.

The petitioner cites many cases in favor of the proposition that generally, when one act has several consequences that the law seeks to prevent, the liability is attached to the act, and is but one. It argues that the delay of the train was such an act, and that the principle, which is a very old one, applies. Baltimore & Ohio Southwestern R. Co. v. United States,220 U. S. 94. But unless the statute requires a different view, to call the delay of the train the act that produced the wrong is to beg the question. See Memphis & Charleston R. Co. v. Reeves, 10 Wall. 176; Denny v. New York Central R. Co., 13 Gray 481. The statute was not violated by the delay. That may have made keeping the men overtime more likely, but was not, in itself, wrongful conduct quoad hoc. The wrongful act was keeping an employee at work overtime, and that act was distinct as to each employee so kept. Without stopping to consider whether this argument would be met by the proviso declaring a "delay" in certain cases not to be within the statute, it is enough to observe that there is nothing to hinder making each consequence a separate cause of action or offense if, by its proper construction, the law does so; see Flemister v. United States,207 U. S. 372,

207 U. S. 375; so that the real question is simply what the statute means. The statute makes the carrier who permits "any employee" to remain on duty in violation of its terms liable to a penalty "for each and every violation." The implication of these words cannot be made much plainer by argument. But it may be observed, as was said by the government, that, as towards the public, every overworked man presents a distinct danger, and as towards the employees, each case, of course, is distinct. United States v. St. Louis Southwestern Ry. Co., 184 F. 28; People v. Spencer, 201 N.Y. 105, 111.

One of the delays was while the engine was sent off for water and repairs. In the meantime, the men were waiting, doing nothing. It is argued that they were not on duty during this period, and that, if it be deducted, they were not kept more than sixteen hours. But they were under orders, liable to be called upon at any moment, and not at liberty to go away. They were nonetheless on duty when inactive. Their duty was to stand and wait. United States v. Chicago, M. & P.S. Ry. Co., 197 F. 624, 628; United States v. Denver & R.G. R. Co., 197 F. 629.

It is urged that in one case the delay was the result of a cause, a defective injector, that was not known to the carrier, and could not have been foreseen when the employees left a terminal, and that therefore, by the proviso in § 3, the act does not apply. But the question was raised only by a request to direct a verdict for the defendant, and the trouble might have been found to be due to the scarcity and bad quality of the water, which was well known. See Gleeson v. Virginia Midland Ry. Co.,140 U. S. 435; The Majestic,166 U. S. 375, 166 U. S. 386.

The statute provides for a penalty not to exceed $500. It is argued that the amount of the penalty was for the jury, the proceeding being a civil suit. But the penalty is a deterrent, not compensation. The

amount is not measured by the harm to the employees, but by the fault of the carrier, and, being punitive, rightly was determined by the judge. United States v. Atlantic Coast Line R. Co., 173 F. 764, 771; Atchison, Topeka & Santa Fe Ry. Co. v. United States, 178 F. 12, 15.

Judgment affirmed.

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